The Judgment of the Court was delivered by

Cornish, J.:— The learned Chief Justice acting under Clause 25 of the Letters Patent has reserved as a point of law for determination under Clause 26 the question whether certain statements given in evidence at the trial of M. Ramanuja Ayyangar for murder were admissible. The statements which are in question were made by the prisoner while he was in the custody of a Police Officer at the shop of a witness, P.W 10, and had relation to the sale of a mattress by that witness at that shop to the prisoner on the 12th January, and to the carriage of the mattress by a coolie woman, P.W 11, from the shop.

The circumstances in which the statements came to be made may be briefly narrated. It is in evidence that the murdered woman had left her husband on the 4th August 1933 and from that date had been living with the prisoner at different places in Madras. From the 23rd December until the evening of 11th January 1934 which was the last occasion according to the evidence on which she was seen alive, the prisoner and the woman were living together at No. 24 Peddunaicken Street. On the evening of the 12th a package was brought to Egmore railway station in a cart and a luggage ticket taken for its despatch by train that night to Karunguzhi by a man who has been identified as the prisoner. The package was not claimed on arrival at Karunguzhi next morning and lay in one of the station offices until the smell of it led to its being opened and the discovery of the body of the woman sewed up in a coir mattress. This was on the 14th. The medical evidence showed that the woman had been strangled. The police investigation began forthwith. The prisoner, who had moved from his lodging in Peddunaicken Street on the 13th, was arrested on the afternoon of the 23rd. The same afternoon, in consequence of information given by the prisoner, he was taken by a Police Officer, P.W 42, to the shop of P.W 10, and it was there that the statements, the subject-matter of the point of law reserved, were made. P.W 10 and P.W 11, it should be observed, have identified the mattress found in the package round the body as the mattress which was sold to the prisoner on the 12th January.

In examination-in-chief the shop-keeper, P.W 10, deposing to the visit of the prisoner with the police to his shop, said:

“The accused pointed out the shop, saving that it was in that shop that he purchased the mattress.”

The witness was cross-examined upon this, and he said:

“It is because ten or eleven days after he made the purchase he came to the shop and himself pointed out the shop saying that it was at this shop that he purchased, adding ‘I paid an advance of 8 annas and subsequently paid Rs. 2-8-0’ that I remember this man.”

The learned Advocate for the prisoner pursued this topic and in answer to further questions the witness stated:

“The car stopped in front of my shop at about 4 p.m They all got down and entered the shop, and as soon as they entered, the accused, looking at me, said ‘I have purchased from him on the 12th a coir mattress’”;

and again:

“It was the accused that was looking at me and asking me, ‘I purchased from you, it is not (is it not?) on the 12th of coir mattress’. I replied to the accused ‘I will look into the account and tell you.’”

Witness then stated that he looked into his account book, and said:

“When I looked into the account, I found that, on the 1-2th, there was a sale of coir mattress and two pillows for Rs. 3-12-0 and another coir mattress for Rs. 3 and I said therefore I did not know whether it was the one or the other that I sold to the accused. Thereupon, the accused said, ‘I purchased it of you for Rs. 3; I paid an advance of 8 annas, and I sent the balance of Rs. 2-8-0 through the coolie woman.’”

Thereupon he was asked:

“So it was the accused that reminded you of the purchase. Otherwise you would not have known it?”

And the witness's answer was:

“Otherwise I could not have known it.”

The coolie woman, P.W 11, who was near the shop at the time of this visit on the 23rd, waiting for a job, in cross-examination said:

“The accused himself mentioned me and said that it was a woman wearing a coral necklace.”

In answer to a further question the witness said:

“When I went there the accused said, ‘It was this woman that carried the article’;”

and again:

“It is upon his mentioning it that I remembered. Pointing to me he said, ‘It is this coolie.’”

The Police Officer, P.W 42, in cross-examination as to when the prisoner pointed out the coolie woman said:

“It is only after the accused pointed out Muhammad Kasim (P.W 10) and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that was the coolie who carried his mattress.”

The first question to be considered is whether the statements made by the prisoner on this occasion amounted to a confession. I think they did. They come within the definition of a confession in Stephen's Digest of the Law of Evidence as an admission suggesting the inference that the prisoner committed the crime charged against him. It was the case for the prosecution that the prisoner was the man who despatched the package containing the dead body in the mattress from Egmore railway station on the evening of the 12th. His admission, therefore, that on the morning of the 12th he had purchased a mattress was a highly incriminating, statement.

The confession having been made by the prisoner when he was in police custody is ruled out by section 26 of the Indian Evidence Act. But it has to be determined whether any fact has been deposed to as discovered in consequence of the confession. If any fact, provided it is a relevant fact has been so discovered, section 27 permits so much of the confession as distinctly relates to the fact thereby discovered to be given in evidence; the reason of the rule being that the discovery of the fact confirms the confession. The fact alleged to have been discovered in consequence of the prisoner's statements is that he purchased a mattress from P.W 10 on the 12th January and had it carried from the shop by the coolie woman, P.W 11. The Police Officer, P.W 42, deposes to this discovery. The witness has deposed:

“He (the prisoner) took me direct to that shop and there pointed out Muhammad Kassim (P.W 10) as the man from whom he purchased the mattress.”

And, with reference to the coolie woman, the witness stated that the prisoner pointed her out and said that she was the coolie who carried his mattress. If P.W 10 and P.W 11 had denied all knowledge of the prisoner and his purchase, or had been unable to recollect anything of the incident, he fact would have been discovered in consequence of the prisoners confession, and his confession would have been entirely groundless. But the consequence of the prisoner's statement was that the Police Officer discovered not merely a shop-keeper and a coolie woman, but that the one had sold a mattress to the prisoner and that the other had carried it for him from the shop. The sale of the mattress and the carriage of it had, of course, to be proved like any other fact. But inasmuch as P.W 10 and P.W 11 have deposed to the sale of the mattress to the prisoner, I think it can be reasonably said that the discovery of the sale of a mattress to the prisoner on the 12th January was the consequence of the prisoner's confession. It was the confession that directly led to the Police Officer making the discovery. The circumstance that the prisoner's purchase of the mattress was already known to P.Ws 10 and 11 (although temporarily forgotten until the prisoner's visit to the shop with the police reminded them of it) would not prevent the discovery of the purchase from being a discovery of the fact by the Police Officer within the meaning of section 27; Legal Remembrancer v. Lalit Mohan Singh Roy(1).

It has been contended that what the Police Officer discovered was not a “fact” within the contemplation of the section. “Fact” is defined by the Evidence Act, section 3, to mean and include “(i) any thing, state of things, or relation of things capable of being perceived by the senses.” In my view the definition does not restrict a fact to something which can be exhibited as a material object. The learned Crown Prosecutor gave an apt illustration of a wider meaning of the word. He supposed the case of a prisoner confessing to having kidnapped a girl and informing the police where he had confined her. I think that the discovery of the girl in that place in consequence of the information given by the prisoner would be the discovery of a fact. It would be the discovery of a “state of things”. In Sukhan v. The Crown the majority of the Full Bench held that the statement of the prisoner that he had pledged jewellery with a certain man was admissible in consequence of the discovery of the jewels with that man. The fact of the pledge was there treated as a fact discovered. Pledged jewels would naturally be in the possession of the pledgee. In the event of, a purchase of an article, such as a mattress, the thing purchased would ordinarily have passed out of the possession of the person who sold it; but I cannot see why a purchase should be any the less a “fact” than a pledge. If the thing purchased has been proved to have been sold and has been identified as the thing sold to the prisoner, all the conditions necessary to the discovery of the fact of purchase are forthcoming. I think that the discovery of the purchase of a mattress by the prisoner on the 12th January was the discovery of a relevant fact in consequence of the confessional statements made by the prisoner to P.W 42 and that the statements distinctly related to the fact discovered. The statements set out in the case reserving the point of law were therefore, in my judgment, admissible.

This conclusion makes it needless for me to discuss the question whether, assuming that the evidence of the prisoner's statements should have been excluded, the other evidence in the case was sufficient to sustain the conviction. But as the question was argued, I will say that in my opinion there was ample evidence, quite apart from the confessional statements, to support the conviction. The conviction therefore must be upheld.

Burn, J.:— The facts have been set out in the judgment of my learned brothers and need not be repeated by me.

Without meaning any disrespect to the erudite argument of the learned Advocate for the prisoner, I do not propose to refer to any of the English cases quoted by him. The question for our consideration is whether certain statements alleged to have been made by the accused while in the custody of the police are admissible in evidence. It is now settled beyond dispute that the law of evidence in this country is contained in the provisions of the Indian Evidence Act. Therefore, although study of the English cases may be useful and instructive to any one who wishes to learn the history of any particular section, or to grasp the principles underlying the law of evidence, it is not, in my opinion, legitimate to attempt to deduce the law from the English decisions. When the terms of any provision of the Evidence Act are clear and unambiguous, it is our duty to apply them without hesitation. We are not permitted to say, after discussion of the English cases on which the provision is based, that the Legislature must have meant something different from what it has in fact laid down.

The present case is in one sense quite free from complication. The learned Crown Prosecutor did indeed make a submission that the statements of the accused with which we are concerned might be admissible under section 8 of the Evidence Act as conduct. But, in view of the terms of Explanation 1 to section 8, the learned Crown Prosecutor, very properly as I think, did not seriously press such a contention. The only section with which we have to do is section 27 of the Act. If these statements are admissible at all it must be under section 27. If they come within the terms of section 27, they are admissible; if they do not, they are inadmissible.

Section 27 runs as follows:—

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

As the first word shows, this is a proviso, and it is now well settled that it is a proviso to both the sections 25 and 26 which immediately precede it. Those sections exclude confessions made to a Police Officer, and confessions made by any person whilst he is in the custody of a Police Officer, unless in the latter case the confession be made in the immediate presence of a Magistrate. This section therefore provides that if certain conditions are fulfilled, a confession made to a Police Officer, or a confession made by a person in the custody of a Police Officer, may be proved. It is not however necessary that the information given by a person in the custody of a Police Officer shall be a confession before it can be proved under the provisions of this section. This is clear from the words used. Any information which relates distinctly to the fact deposed to as discovered in consequence of the information received maybe proved. In addition it is laid down that such proof may be given even if the information amounts to a confession; it is the words “whether it amounts to a confession or not” which make this section an exception to the general rules embodied in sections 25 and 26.

Strictly speaking therefore it is not important to decide whether the statements alleged in this case to have been made by the accused amount or do not amount to a confession. The section says that even if they do they may be proved, subject of course to the fulfilment of the other conditions prescribed. If they do not amount to a confession they are equally, if not a fortiori, provable. For myself I do not see how these statements can properly be described as a confession, in any complete sense. No one, I imagine, would hold that the jury could have convicted the accused of the offence of murder, if nothing more had been proved against him than that he had made these statements. Even if the jury had been entirely satisfied that the accused had made these statements and that they were true, they could not have held on them alone that the accused had committed murder. They are confessional statements in the sense that if believed they establish one of many facts which taken all together prove the guilt of the accused. It is impossible in my opinion to rate these statements higher than that. Indeed, it is merely to state an obvious truth to say that if the police had not been able to adduce any other evidence than this—that the accused had bought the mattress in which the corpse was found tied up, and had that mattress taken to the house in which he was living—he would never have been put on his trial. The statements are incriminating certainly, and to that extent they are of a confessional nature, but they cannot be properly described as anything like a complete confession.

Taking now the provisions of section 27, there is no doubt but that the accused, on the 23rd of January 1934, when he is alleged to have made these statements, was a person accused of an offence, and was in the custody of a Police Officer. He had been arrested by the Inspector of Police (P.W 42) on a charge of murder, and he was in the custody of that officer. The next point to consider is, in the words of the section, whether any fact was deposed to as discovered in consequence of information received from the accused while in custody. This point is really settled by a reference to the evidence of P.W 10, the shop-keeper, who said he sold the mattress to the accused, and of P.W 42, the Police Inspector. P.W 10 says:

“About 10 or 11 days afterwards, about 4 p.m, this Inspector and another Ayyar came with the accused and the accused pointed out the shop, saying that it was in that shop that he purchased the mattress.”

This is the first item of evidence reserved for our consideration by my Lord the Chief Justice. Again, P.W 42, the Police Inspector, says in chief-examination that he went to the shop of Muhammad Kasim (P.W 10) on the information of the accused, and that the accused pointed out the premises, and that he (the Inspector) discovered the witness Thayi (P.W 11) on her being pointed out by the accused. In answer to a question by the Court the Inspector said:

“Yes. He took me direct to the shop and there pointed out Muhammad Kasim as the man from whom he purchased the mattress.”

Further in cross-examination, the Inspector replied to questions put to him as follows:—

“Q.—And did you see the woman Thayammal when you went there?

A.—Absolutely not.

Q.—When did she turn up there?

A.—It is only after the accused pointed out Muhammad Kasim and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that was the coolie who carried his mattress.”

These passages show beyond the possibility of doubt that two facts were deposed to as discovered in consequence of information given by the accused. The two facts are: (i) that the mattress was purchased by the accused from P.W 10, and (ii) that the woman (P.W 11) was engaged by the accused to carry the mattress to the house in which he was then living. No attempt was made at the trial, so far as can be inferred from the record, to show that these two facts were discovered in any other manner or in consequence of information given by anyone else. The only reasonable conclusion is that these facts were really discovered in consequence of the information given by the accused while he was in the custody of the Police Inspector. That is more than is required by the terms of section 27. The section does not require more than that certain facts shall be deposed to as discovered in consequence of information received from a person accused of an offence.

As I have said, Mr. T.R Venkatarama Sastri for the accused does not contend that these facts were discovered in any other manner than that described by the prosecution. Nor does he contend that they are not relevant facts. Indeed, in a branch, of his argument which I shall consider later, he contends that these were the most important facts in the whole case, but for which the jury could not, or at any rate would; not, have convicted his client. He is compelled for the purposes of this case to contend that though these are facts, and relevant facts, they are not the kind of facts with which section 27 is concerned.

The argument as I understand it is briefly as follows: Confessions made to the police or by persons in the custody of the police are excluded because there is a grave risk of their being false. But, in the words of Woodroffe and Ameer Ali,

“the necessity for the exclusion disappears in a case provided for by this section, when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given. It is this guarantee, afforded by the discovery of the property, for the correctness of the accused's statement, which is the ground of the admission of the exception to the general rule. The fact discovered shows that so much of the confession as immediately relates to it is true.”

It follows, according to Mr. T.R Venkatarama Sastri's contention, that the facts referred to in section 27 must be of a particular kind, must have a particular character. They must be of such a nature that by themselves, without any accompanying statement of a witness, they demonstrate the truth of the information given. In one word, he contends, the facts must he “self-probatory”. This is an instance of the practice which I have already deprecated. From the reason underlying section 27 an attempt is made to deduce the conclusion that section 27 does not really mean all that it says but only a part of it. Section 27 says “any fact”, but, in spite of that, the contention is, we must suppose that it means only facts of this peculiar nature. I must decline for my part to accept any such contention. Nothing can be easier to understand than the words “any fact” and I am not prepared to hold that they mean less than they say. I shall therefore not discuss any of the numerous cases cited by Mr. T.R Venkatarama Sastri in which learned Judges have gone the length of holding that the only facts contemplated by section 27 are actual physical material objects. There is no warrant for any such limitation.

It can be even contended very fairly, as the learned Grown Prosecutor has contended in this case, that the facts discovered in consequence of the information received from the accused satisfy the test deduced from the reason underlying the rule. The accused gives information of the facts of his purchase of the mattress and of his engagement of the coolie woman to carry it to his residence. In consequence of that information the police discover the shop, the shop-keeper and the coolie woman. The witnesses when questioned speak to the two facts disclosed by the accused. There is therefore independent proof of the truth of the information given by the accused. What more than this is forthcoming in the cases in which material objects, such as stolen properties or implements of crime, are found? The actual finding of such things in the place where the accused says they will be found proves no more than that the accused knew where they were. He may say, for instance, that he has hidden stolen property in a straw-stack. The stack is searched and the property is found. That, however, is not in any sense proof that it was hidden there by the accused. The discovery certainly corroborates the accused's statement to some extent, and ordinarily in such a case no one would have any difficulty in believing that the accused had in fact hidden the property there himself. All that I am now concerned to point out is that the mere finding of the property does not in any way by itself corroborate the accused's story of how it got to the place where it is. This will appear in a moment if we consider a case in which an accused person gives information which incriminates another. It will not be far fetched to suppose for instance a case in which two men have been jointly concerned in a theft. One of them is arrested and he says: “My confederate has buried some of the stolen property in such a place.” The place is searched and the property found. Who will consider the finding of the property as any corroboration of the accused's statement that it was put there by the other man? The Magistrate or Judge is far more likely to draw the inference that the accused must have put it there himself. Without discussing this matter at greater length it is, in my opinion, sufficiently clear that material objects have not in themselves any greater probative value than any other facts.

Having, thus found that all the other conditions required by section 27 are present, I proceed to discuss the only question that remains, which is:—Do these statements, made by the accused, relate distinctly to the facts discovered in consequence of the information given by him? This part of section 27, like all the other parts of it, has been the subject of interpretation in many decided cases. I do not think anything is to be gained by an examination of those cases, for a very simple reason. So far as I am able to understand, the glosses on those words, and the interpretations of them to be found in the decided cases are far less simple and intelligible than the words themselves. It is a commonplace of the schools that what is obscure cannot profitably be explained by what is still more obscure. I will venture to say that the Legislature has used the simplest words possible, words which are not susceptible of explanation in more intelligible terms. Our task is merely to decide whether these words apply to the statements laid before us by the learned trial Judge.

Of the eight items with which we have to deal, only one was brought out by the prosecution in the examination-in-chief of P.W 10. I have referred to this already. It is the passage in which P.W 10 says:— “… the accused pointed out the shop, saying that it was in that shop that he purchased the mattress.” This of course relates distinctly to the fact of the purchase of the mattress by the accused, and it is clearly admissible under section 27. One item, the 7th in the Order of the learned trial Judge, is an answer given by the coolie woman to a question put by the Court. That woman (P.W 11) says: “When I went there the accused said, ‘It was this woman that carried the article’”. This statement undoubtedly relates distinctly to the fact that the accused engaged that woman to carry the mattress to the house in which he was living. That also is admissible under section 27. All the other items were brought out in the cross-examination, by the learned Advocate for the defence, of P.W 10, P.W 11 and P.W 42. No one suggests that statements which would be inadmissible if offered in examination-in-chief for the prosecution can become admissible merely because they were made in answer to questions put in cross-examination. It is, however, a fair presumption that the questions put in cross-examination, especially when they are put by a learned Advocate described by the learned trial Judge as a gentleman of very great experience, will not be quite irrelevant, or unrelated to the matters in issue. In the present case that presumption is borne out by the facts; the questions were very relevant and had a very near relation to the facts. Items 2, 3, 4 and 5 appear in the cross-examination of P.W 10. They are as follows:—

“The accused himself pointed out the shop, saying that it was at this shop that he purchased, adding, ‘I paid an advance of annas 8 and I subsequently paid Rs. 2-8-0’.

The accused looking at me said ‘I have purchased from him on the 12th a coir mattress.’

It was the accused that was looking at me and asking me, ‘I purchased from you, is it not, on the 12th a coir mattress?’

Thereupon the accused said, ‘I purchased it of you for Rs. 3; I paid an advance of eight annas and I sent the balance of Rs. 2-8-0 through the coolie woman.’”

The first and fourth of these statements describe the terms of the purchase, and I do not understand how it can fairly be contended that the terms of a purchase do not distinctly relate to the fact of the purchase. The second and third of these four statements are mere repetition of the statement made in the chief-examination of the same witness, with the addition of the date of purchase and of the person who sold the mattress. These additions also distinctly relate to the fact of purchase, unless it can be held that the identity of the vendor and the date of sale are matters which do not relate to the fact of a sale.

Items 6 and 7 occur in the deposition of P.W 11. I have already dealt with item 7. Item 6 is P.W 11's answer to the question:—

“When you saw this accused on that day did you remember his features when the police asked you about him from what you saw him on that day?”

The reply was:

“The accused himself mentioned me and said that it was a woman wearing a coral necklace.”

When the fact discovered in consequence of the information received from the accused is the fact that he engaged a certain woman to carry the mattress to his house, I fail to see how it can be argued that the identity of the woman is not a matter distinctly related to the fact. The statement of the accused that P.W 11 was the woman, and the addition of the detail that she was wearing a coral necklace, are clearly admissible under section 27.

The eighth and last item of evidence with which we have to deal is the answer given by the Police Inspector to a question put to him in the course of a cross-examination intended apparently to elicit whether it was really true that the woman Thayammal (P.W 11) was pointed out to the police by the accused. The learned Advocate first asked the witness:—

“And did you see the woman Thayammal when you went there?”

The reply was:—

“Absolutely not”.

Then the Advocate asked:—

“When did she turn up there?”

and the Inspector replied:

“It is only after the accused pointed out Muhammad Kasim and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that was, the coolie who carried his mattress.”

This was precisely the information given by the accused which led directly to the discovery of the fact that he had engaged that woman to carry the mattress to his house, and proof of it is certainly admissible under section 27.

For these reasons I agree with my learned, brother Cornish, J. that none of the evidence referred to in the Order of the learned trial Judge was inadmissible.

[His Lordship then considered the question whether, even if the statements in question were inadmissible, the verdict of the jury could or should be sustained and proceeded:—]

In these circumstances I am satisfied that independently of the evidence now in question there was sufficient evidence to justify the decision, and that consequently section 167 of the Evidence Act would forbid us to interfere. I would go further, in view of the dicta in certain reported cases, and would say that in my judgment the omission of these items of evidence could not, have made any difference to the verdict.

The conviction and sentence must therefore be confirmed.

Lakshmana Rao, J.:— The accused was tried at the third Criminal Sessions, on an indictment under section 302 of the Indian Penal Code, for intentionally causing the death of One Sithammal by manual strangulation on the night of the 11th of January 1934, at No. 24 Peddunaicken Street, Georgetown, Madras, and the jury found him guilty of the offence by a majority of six to three. The trial Judge, my Lord the Chief Justice, agreed with the majority verdict and the accused was sentenced to death. He moved the Advocate-General for a certificate under Clause 26 of the Letters Patent, which empowers him to certify that a point or points of law which has or have been decided by the Court should be further considered, and the Crown Prosecutor opposed the application. The Advocate-General gave a certificate regarding the reception in evidence of certain statements made by the accused while in the custody of the police, to which exception was not taken at the trial, and the omission of the trial Judge to direct the attention of the jury to the question of the continued possession till her death by the deceased of the silver articles pledged by the accused subsequent to the murder, and the accused applied for a review of the case under Clause 26 of the Letters Patent. The Crown Prosecutor intimated his intention to question the interpretation of the words “decision on a point of law decided by the trial Judge” in the Full Bench decision in C.K.N Sundaresa Iyer v. King-Emperor and to take a preliminary objection to the competency of the application, on the ground that there was no decision on a point of law by the trial Judge requiring further consideration, and a Full Bench of seven Judges was formed to consider the objection. The Full Bench upheld the preliminary objection by a majority of five to two, and it further held that the question of continued possession of the silver articles till her death by the deceased did not arise in the case, in view of the plea of the accused that they belonged to him and not to the deceased. The application for review was therefore dismissed, and since the question of the admissibility of the statements made by the accused while in the custody of the police and the effect of their admission, if inadmissible, could not be considered therein, the learned-Chief Justice has in the exercise of his powers under Clause 25 of the Letters Patent reserved it for the opinion of the High Court.

[His Lordship then set out the facts of the case and proceeded:—]

It was at P.W 10's shop that the statements in question which are set out below were made and they came on record in the following manner. P.W 10 was questioned in examination-in-chief whether the police came to him in connection with the case, and he stated:

“P.W 42 came with the accused and the accused pointed out the shop saying that it was in that shop that he purchased the mattress.”

It was elicited in cross-examination that he had sold some other articles on the 12th January and, in reply to a further question whether he remembered the purchasers, P.W 10 stated:

“It is because ten or eleven days after he made the purchase he came to the shop and himself pointed out the shop saying, that it was at this shop that he purchased, adding ‘I paid an advance of 8 annas and I subsequently paid Rs. 2-8-0’, that I remember him.”

He was asked next whether the accused stated in his presence that it was the shop in which he purchased, and the witness stated:

“The car stopped in front of my shop at about 4 p.m They all got down and entered the shop, and as soon as they entered the accused looking at me said ‘I purchased from him on the 12th a coir mattress’.”

He was then asked, whether P.W 42 stated anything, and the answer was:

“It was the accused that was looking at me and asking me ‘I purchased from you, is it not, on the 12th, a coir mattress.’”

The cross-examination was pursued and the witness stated:

“The police then asked me to take the account and I showed the account. When I looked into the account, I found that on the 12th there was a sale of a coir mattress and two pillows for Rs. 3-12-0 and another coir mattress for Rs. 3; and I said therefore I did not know whether it was the one or the other that I sold the accused. Thereupon the accused said ‘I purchased it of you for Rs. 3. I paid an advance of 8 annas and I sent the balance of Rs. 2-8-0 through the coolie woman.’”

P.W 11 was asked in cross-examination whether she remembered the features of the accused from what she saw of him on the date of purchase, and she stated:

“The accused himself mentioned me and said that it was a woman wearing a coral necklace.”

Then, in answer to a question by the Court, she stated:

“When I went there the accused said ‘it was this woman that carried the article’.”

and P.W 42 deposed in examination-in-chief that he discovered P.W 11 on being pointed out by the accused. He was cross-examined about it and he stated:

“It was only after the accused pointed out P.W 10, and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that was the coolie who carried the mattress.”

The purchase of the coir mattress in which the corpse was packed and its carriage to the alleged scene of crime through the coolie woman on the 12th January suggest the inference that the accused committed the crime and the contention that the statements in question do not amount to a confession is untenable. They were made while in the custody of the Police Officer and their admissibility depends upon the correct interpretation of section 27 of the Indian Evidence Act which is in these terms:

“Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.”

The discovery of a fact as the result of the information is a condition precedent to the reception in evidence of the information or any portion, thereof, and, as pointed out in the Full Bench decision in Sukhan v. The Crown, though the expression “fact” as denned by section 3 of the Indian Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious, it is in the former sense that the word is used in section 27. The fact discovered should therefore be a material and not a mental fact, and, as observed by the learned authors, Woodroffe and Ameer Ali, in their Commentary on the Evidence Act,

“the word ‘discovery’ may either mean the purely mental act of learning something which was not known before to a person, as the mere mental act of becoming aware of something after hearing it stated, or the physical act of finding upon search or inquiry something or material fact, the existence or the exact locality of which was unknown till then. It is in the latter sense that the word is used in this section, that is in the sense of a finding upon a search or inquiry of articles connected with the crime or other material fact, the reason being that it is only this kind of discovery which proves that the information in consequence of which the discovery was made is true and not fabricated.”

The fact discovered may thus be the stolen property, the instrument of the crime, the corpse of the person murdered or any other material thing, or a material thing in relation to the place or the locality where it is found, and it should confirm the information though its connection with the crime and identification are always provable aliunde. The discovery of a witness to the crime or act of the accused, on his information, would not be a discovery of a fact within the meaning of the section, vide Palaniandi Velan v. Emperor, and the confirmation or otherwise of the statement of the accused by the witness discovered cannot make any difference. Further, section 162 of the Code of Criminal Procedure prohibits the use of any statement by the witness to the investigation officer, and the discovery should in my opinion be of some concrete fact. The karas being found in the possession of the pledgee in Sukhan v. The Crown(2) would be a fact discovered in this sense, and so would the finding of the person kidnapped and wrongfully confined at the place mentioned by the accused in the illustration suggested by the Crown Prosecutor. There would be no discovery in those cases if the karas and person kidnapped were not found, and it is well settled that even when a thing is discovered the statement of a prisoner as to how he came by it cannot be proved. The statements in this case are of this nature and they were verified by P.W 42, the Police Officer, by examining the witnesses pointed out by the accused. He cannot be said to have discovered any fact within the meaning of section 27 of the Indian Evidence Act and in my opinion the statements in question are not admissible in evidence.

The case has therefore to be reviewed on the evidence properly admissible, and, as pointed out in Emperor v. Panchu Das*, it is incumbent on this Court to investigate whether independently of the evidence improperly admitted there is sufficient evidence to justify the conviction.

[His Lordship then considered the evidence and concluded that the jurors who had found the accused guilty would have come to the same conclusion independently of the statements in question and proceeded:—]

There, is therefore no ground for interference and the conviction and sentence will stand.

[After the above decision of the Full Bench the prisoner applied for leave to appeal to the Privy Council. That application came on for hearing before their Lordships, Cornish, Burn and Lakshmana Rao, JJ. and their. Lordships passed the following order on 4th December 1934:—]

This petition for leave to appeal to the Privy Council is made in a case where a point of law has been reserved for the decision of the High Court. There can be no doubt then, from what is said by their Lordships in Barendra Kumar Ghosh v. Emperor, that the petition is competent. But the right of appeal given by Clause 41 of the Letters Patent is subject to the proviso that the High Court shall declare that the case is a fit one for appeal. The High Court, therefore, has the duty of satisfying itself, before declaring a case, fit for appeal, that the case falls within the limits prescribed by the Privy Council for the entertainment of appeals in criminal matters.

Their Lordships of the Judicial Committee have repeatedly declared that they are not a Court of criminal appeal: In Dal Singh v. King-Emperor they say:—“It is well-settled that the unwritten principles of the constitution of the Empire, restrain the Judicial Committee from being used in general as a Court of review in criminal cases. But while the Sovereign in Council does not interfere merely on the question whether the Court below has come to a proper conclusion as to guilt or innocence, such interference ought to take place where there has been a disregard of the proper forms of legal process, grievous and not merely technical in character, or a violation of principle in such a fashion as amounts to a denial of justice.”. And again:—“A mere mistake on the part of the Court below, as, for example, in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below.”

The learned Advocate for the petitioner has founded his argument in favour of the petitioner on two grounds. First, that a wrong construction has been put upon section 27 of the Indian Evidence Act, resulting in the wrongful admission of confessional statements. His second ground relates to the application of section 167 of the Evidence Act. The construction put upon section 27 by the majority of us has ceased to be of practical importance in the case because we have unanimously held that independently of the questioned statements there was sufficient evidence to justify the conviction. There is nothing in the Evidence Act to support the suggestion that section 167 has no application to a case tried by a jury at the High Court Criminal Sessions. On the contrary, there is good authority that section 167 is applicable and that the High Court in exercising its power of review under Clause 26 of the Letters Patent has full power to decide whether the evidence properly received at the trial is sufficient to sustain a conviction: see Queen v. Hurribole Chunder Ghose, Imperatrix v. Pitamber Jina and Empress v. Patrick McGuire(3). No doubt, as urged by the learned Advocate, important questions of law are raised in the case but that circumstance would not, in the light of what is said by their Lordships in Dal Singh v. King-Emperor(4), be a valid reason for sanctioning a further appeal. Admittedly the other evidence given at the trial was properly received; and in our opinion it is sufficient to support the conviction. We think, therefore, that we should not be justified in declaring this case fit for appeal.

[An application was made to His Majesty in Council for special leave to appeal in the above matter. The petition was heard on 16th April 1935 by a Board consisting of Lord Thankerton, Lord Wright and Sir Shadi Lal.

D.N Pritt K.C and C. Sidney Smith instructed by Hy. S.L Polak & Co., appeared for the petitioner. A.M Dunne K.C and W. Wallach instructed by Solicitor, India Office, appeared for the respondent.

The Board after hearing the arguments for the petitioner dismissed the petition without calling on Counsel for respondent.]

A.S.V